Criminal harassment laws, speech, and the "no usefulpurpose"proviso; witch hunts; rationality and criminal law

Volokh, Eugene VOLOKH at law.ucla.edu
Wed Aug 8 10:39:33 PDT 2007


	I'm pretty sure that Dennis et al. no longer reflect current
First Amendment law.  But even setting that aside, can it really be that
speech is punishable when it's part of a conspiracy to deny someone "the
right to live in a particular community" by publicizing the person's
past acts, and leading people to condemn that person?  Claiborne made
clear that people are free to engage in social ostracism as a means of
pressuring changes in behavior -- even though of course every black
citizen of the county had a right to shop at a particular store, and
especially a right to shop at a particular store without regard to his
race.  Likewise, Keefe made clear that people are free to try to
pressure realtors to change their business practices through public
condemnation and the implicit threat of ostracism and lost business.  

	If I think that a sex offender shouldn't live in a particular
neighborhood, how can the government punish me for conveying the fact
that he's a sex offender, and implicitly urging people to exercise their
own right not to socialize with him or do business with him?

	Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu] 
> Sent: Wednesday, August 08, 2007 10:26 AM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Criminal harassment laws, speech, and the "no 
> usefulpurpose"proviso; witch hunts; rationality and criminal law
> 
> I see these questions as close.  Hustler and and Garrison 
> generally support the view that speech cannot lose protection 
> based on motive; but those cases focus on the need to protect 
> criticism of public officials and public figures, 
> respectively.  Moreover, Dennis, Yates, Scales and Noto hold 
> that speech can lose protection when it is part of a course 
> of conduct directed at an unlawful objective.  I know that 
> Professor Volokh doubts the integrity of a rule that denies 
> protection to speech when undertaken as part of a course of 
> unlawful conduct, but this concept is pretty firmly rooted in 
> First Amendment law; Dennis, Scales and Noto were cited with 
> approval in Brandenburg, and the view that speech can lose 
> protection based on motive was endorsed in Claiborne 
> Hardware.  Indeed, virtually the whole of the law of criminal 
> conspiracy stands for the proposition that speech can lose 
> its protected character based on motive.  
>  
> As for vagueness, I don't think that question can be answered 
> without considering the possibility of a narrowing 
> construction from the Wisconsin Supreme Court.  If the 
> statute were construed, for example, as limited to those who 
> publish such information as part of a conspiracy to deprive 
> someone of a legal right (such as the right to live in a 
> particular community), perhaps it would be upheld, much as 
> the Smith Act was upheld.  Still, because this statute is so 
> broadly drafted, and has no obvious limiting construction 
> that makes it resemble a conspiracy or civil rights law, I 
> suspect that it would be invalidated.
>  
> Larry Rosenthal
> Chapman University School of Law
> 
> 
> ________________________________
> 
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Wed 8/8/2007 9:47 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Criminal harassment laws, speech, and the "no 
> usefulpurpose"proviso; witch hunts; rationality and criminal law
> 
> 
> 
>         (1)  One question is whether one can lose protection 
> for speech because of improper motive.  Hustler v. Falwell 
> and Garrison v.
> Louisiana generally suggest the answer is no.
> 
>         (2)  Another is whether the Wisconsin statute is 
> content-neutral.  It should, in my view, be treated as 
> content-based when applied to speech because of the 
> communicative impact of the speech
> -- as is the case here.  Note that the laws in Hustler, 
> Claiborne, Cohen, and a wide variety of other cases were 
> facially speech-neutral, but were subjected to extremely 
> skeptical First Amendment scrutiny when applied to speech 
> because of its communicative impact, and in my view rightly 
> so.  I discuss this in detail in a Cornell piece of mine from 
> 2005, http://www.law.ucla.edu/volokh/conduct.pdf, Part I.
> 
>         (3)  But the most serious problem with the law, I 
> think, is its vagueness.  It's not that some specific motives 
> are made criminal; it's that speech is criminalized because 
> it has "no legitimate purpose," with no explanation or 
> guidance for judges, jurors, prosecutors, police officers, or 
> speakers about what purposes are legitimate.  Can that 
> possibly be constitutional?
> 
>         Eugene
> 
> > -----Original Message-----
> > From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> > Sent: Tuesday, August 07, 2007 7:22 PM
> > To: michael curtis; Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: Criminal harassment laws, speech, and the "no useful 
> > purpose"proviso; witch hunts; rationality and criminal law
> >
> > I too am not sure of the right answer to the First 
> Amendment question.  
> > What does seems clear to me is that the First Amendment 
> protects the 
> > right to publicize information obtained from public 
> records, in this 
> > case, the sex offender registry.  E.g. Cox Broadcasting v. Cohn (a 
> > case involving the press, I know, but the Court keeps 
> telling us that 
> > the press has no greater rights than the public).  The 
> question then 
> > becomes whether one can lose First Amendment protection under this 
> > line of cases because of an improper motive for publicizing the 
> > information.  We know from Wisconsin v.
> > Mitchell that motive is not itself protected by the First 
> Amendment, 
> > and that legislative determinations about the need to 
> punish and deter 
> > based on motive are reviewed deferentially.  The Wisconsin statute 
> > also seems generally applicable and content and viewpoint 
> neutral to 
> > me because it turns on motive rather than any identifiable 
> content or 
> > viewpoint (Allen could violate the statute as readily as his 
> > neighbors), and Mitchell again treats illicit motive as content and 
> > viewpoint neutral.  Still, Mitchell was considering only 
> unprotected 
> > conduct (enhanced punishment for hate crimes), rather than the 
> > question whether otherwise protected speech can lose its protection 
> > based on motive.
> > Although Hustler v. Falwell is not quite on point because that case 
> > turns in part on the need to protect parody as a form of 
> expression, 
> > my guess is that Hustler would carry the day against the Wisconsin 
> > statute as applied to the distribution of public records 
> such as these 
> > -- when constitutional protection for statements of fact 
> made without 
> > malice in the New York Times v. Sullivan sense is lost 
> solely because 
> > of the defendant's motive, there is an unacceptable 
> chilling effect on 
> > protected speech.  Still, I have some trouble reconciling 
> such a broad 
> > reading of Hustler with cases like Dennis, which suggest that an 
> > improper objective (driving Allen out of town?) and 
> speaking a part of 
> > a course of conduct reasonably calculated to achieve that objective 
> > leaves such speech unprotected.  As Professor Volokh's own work 
> > demonstrates, this is a difficult area of the law.
> > 
> > I have less trouble with a Lawrence defense to a charge of 
> statutory 
> > rape.  Lawrence involved the rights of consenting adults.  
> Nothing I 
> > can see in Lawrence suggests that the state must presume that a 15 
> > year old girl is capable of giving valid consent to a 
> request (or was 
> > it, at least to 15 year old ears, a demand?) for oral sex.
> > 
> > Larry Rosenthal
> > Chapman University School of Law
> > ------------------------------
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of michael curtis
> > Sent: Tue 8/7/2007 6:05 PM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: Re: Criminal harassment laws, speech, and the "no useful 
> > purpose"proviso; witch hunts; rationality and criminal law
> >
> >
> >
> > I am not sure of the answer to Eugene's first amendment 
> question. Here 
> > we have a 16 year old boy who agrees to the proposal from a fifteen 
> > year old girl that she perform oral sex on him.  Making 
> this boy into 
> > a "sex offender" who must be registered and stigmatized for 
> the rest 
> > of his life is
> > awful.   Without more, there is simply no reason to think
> > this kid will be
> > inclined (for the rest of his life) to prey on children.   These two
> > children were within about a year of the same age.  To treat this 
> > adolescent event as somehow comparable to an adult who sexually 
> > molests a young child is horrible.  And now at age
> > 25 this young man is hounded and stigmatized by a group of 
> neighbors 
> > although he has fully complied with all the restrictions so cruelly 
> > imposed on him.  Of course, the neighbors think they are protecting 
> > children--but, of course,  the people who burned witches 
> thought they 
> > were protecting children.  This story is revolting.  To 
> me--at least 
> > as applied to these facts--the  "no legitimate purpose" seems about 
> > right although the test would be vague and overbroad in 
> many cases.  
> > This story is an example of how ill considered over broad 
> pursuit of a 
> > worthy purpose can lead to cruel, extreme, and unfortunate results.
> >
> > The following is a comment only on a general proposition, 
> not on how 
> > rationality might be treated by courts in this case if they 
> decided to 
> > use it or whether it should be applied here.
> > In response to Robert Sheridan's thoughtful post, note that 
> Lawrence 
> > v. Texas did apply a heightened rationality approach to 
> criminal law 
> > and so I guess did Eisenstadt v. Baird.
> > The Kansas Supreme Court used an equal protection 
> rationality approach 
> > to strike down a harsher punishment for same sex child on 
> child oral  
> > versus much lesser punishment for opposite sex oral sex between 
> > otherwise similarly situated kids.  The California Supreme 
> Court held 
> > that imposing life long sex offender registration on a twenty some 
> > year old  man who had oral sex with an  18 year old woman 
> (these ages 
> > are from memory) when no registration would be required if they had 
> > had vaginal sex was so irrational as to violated even low level 
> > rational basis.  So sometimes courts do use rationality 
> review.  And 
> > at other times, as in Michael M., a gender discrimination that the 
> > dissent argued  had no significant advantage over a gender 
> neutral law 
> > is upheld.
> >
> > Hyper active courts can be a serious problem.  So can 
> courts that are 
> > inclined to ignore blatant injustices and invasions of 
> liberty.  Cases 
> > like this make me wonder whether a pinch of rationality now 
> and then 
> > might not be a good idea.  I am not sure how it would or 
> should work 
> > here.
> >
> > Michael Curtis
> >
> >
> >
> > ----- Original Message -----
> > From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> > To: <CONLAWPROF at lists.ucla.edu>
> > Sent: Tuesday, August 07, 2007 4:37 PM
> > Subject: Criminal harassment laws, speech, and the "no 
> useful purpose"
> > proviso
> >
> >
> > > I was hoping I might have list members' thoughts on this 
> question, 
> > > which I've seen raised in various cases.
> > >
> > > Some state laws ban "criminal harassment," including
> > behavior defined
> > > more or less as "Engag[ing] in a course of conduct [= a 
> pattern of 
> > > conduct composed of a series of acts over a period of 
> time, however 
> > > short, evidencing a continuity of purpose] or repeatedly
> > commit[ing]
> > > acts which harass or intimidate the person and which serve no 
> > > legitimate purpose."  The broadest body of caselaw I've
> > seen on this
> > > has been in Wisconsin; the statute I just quoted is the
> > Wisconsin one, Wisc. Stat.
> > > Ann. 947.013.
> > >
> > > Naturally, what constitutes "no legitimate purpose" ends up being 
> > > critical, or else Larry Flynt would be criminally prosecutable in 
> > > Wisconsin for publishing the material in Hustler v. Falwell
> > (at least
> > > if he published it at least twice).  (Recall that "harass"
> > here is not
> > > the same as in hostile environment law; presumably it bears
> > its normal
> > > English meaning, which would cover Flynt's intentions.)
> > The statute
> > > gives no definitions.
> > >
> > > In any case, here's a specific instance that tests this:
> > > Several Fond du Lac residents live near a convicted sex 
> offender (a 
> > > Michael A. Allen).  They printed copies of that offender's
> > Wisconsin
> > > Department of Corrections Sexual Offender Registry Registrant 
> > > Information web page, and publicly posted it in various
> > places -- at a
> > > gas station, at a YMCA, and several trees and telephone
> > poles.  They
> > > were then arrested for harassment.  The arresting 
> officer's report 
> > > explains that this was "because [their] conduct served no useful 
> > > purpose.  Michael Allen is following the rules of the 
> registration 
> > > system and is not breaking any laws.  It appears to be the
> > intent of
> > > the suspects to force Michael Allen to move from the area."
> >  (I should
> > > also say that Allen's offense strikes me as very minor as
> > sex crimes
> > > go -- "Court records show that Allen was convicted in 1998 of 
> > > second-degree sexual assault of a child for receiving oral
> > sex from a
> > > 15-year-old girl. The records show that Allen was 16 years
> > of age at
> > > the time of the incident, which occurred in 1997 in Shawano
> > County. In
> > > a victim statement included with court documents, the
> > 15-year-old girl
> > > said it was her idea to perform the sexual act. She also 
> wrote that 
> > > she didn't think it was Allen's fault or that he should get in 
> > > trouble."  Should that matter for constitutional purposes?)
> > >
> > > I take it that defendants believe their conduct does serve a 
> > > legitimate and useful purpose -- it may inform their
> > neighbors about
> > > the possible danger posed by Allen.  Even if they intend to
> > try to get
> > > Allen to move, that too may be useful for them and their 
> children, 
> > > though of course it may lead Allen to move to become a
> > possible threat
> > > to other children (again, I don't see him as much of a 
> threat, but 
> > > obviously they do, and the law does require registration
> > for offenders like Allen).
> > >
> > > Is the "no legitimate purpose" proviso unconstitutionally vague?
> > > Is the statute unconstitutionally content-based, when applied to 
> > > speech like this that "harasses" because of its content,
> > much as the
> > > emotional distress tort, interference with business
> > relations tort, or
> > > disturbing the peace law is unconstitutionally content-based when 
> > > applied to otherwise protected speech because of its
> > content (see Hustler v.
> > > Falwell; NAACP v. Claiborne Hardware; Cohen v. 
> California)?  If "no 
> > > legitimate purpose" is constitutionally permissible when properly 
> > > interpreted, what is that proper interpretation?
> > >
> > > The same defendants were also arrested for getting into a
> > fight with
> > > the offender over the offender's coming onto their property
> > to remove
> > > a copy of the sheet that they had posted on their own 
> property; but 
> > > that's a separate charge, and I thought we'd set it aside for now.
> > >
> > > Thanks in advance for any responses,
> > >
> > > Eugene
> > > _______________________________________________
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